Abortion rights activists protest outside the U.S. Supreme Court Tuesday. Photo by Jane Norman, States Newsroom.

BY: JENNIFER SHUTT – Ohio Capital Journal

WASHINGTON — U.S. Senate Democrats on Tuesday pledged a new vote codifying the right to an abortion after publication of a draft court ruling that showed the Supreme Court on track to overturn the landmark Roe v. Wade abortion decision.

Democrats, who likely won’t have the votes to advance that bill, also predicted that abortion will emerge as a major issue in the upcoming midterm elections for members of Congress.

Their comments came as abortion rights supporters across the United States reeled in reaction to the disclosure of the initial draft U.S. Supreme Court opinion, led by Justice Samuel Alito and leaked to Politico. While the court ruling is not final until published, the draft states that earlier abortion decisions “must be overruled.”

Senate Majority Leader Chuck Schumer, a New York Democrat, said Tuesday he plans to release a new bill this week that senators will vote on next week to codify Roe v. Wade.

But in the evenly divided Senate, it will run into problems getting past a legislative filibuster that requires 60 votes for legislation to advance.

Were Roe v. Wade to be struck down by the court, which is dominated 6-3 by conservatives, the question would be left up to states, and more than two dozen Republican-led states have been racing to enact abortion bans and restrictions.

Supreme Court Chief Justice John Roberts said the draft, published on Monday night, was authentic, though he cautioned it wasn’t the final opinion, and said he’d directed the Marshal of the Court to investigate the leak.

Republicans called for the Justice Department to also investigate how the draft made its way to two journalists, saying the leak was a violation of the court’s judicial process.

Roberts said the leak of the document was wrong.

“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court,” Roberts said in the statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The court is expected to release its official ruling in the case, Dobbs v. Jackson Women’s Health Organization, within the next two months, though many organizations have long expected the six conservative justices to at least pare back the constitutional right to an abortion.

Democratic senators on Tuesday said a final decision undoing the constitutional right to an abortion the Supreme Court established five decades ago would be unacceptable and harmful to women.

Montana Democratic Sen. Jon Tester said letting each state, once again, set its own abortion laws would be a “step in the wrong direction.”

“I think that a woman’s right to choose, a woman’s right to make their own health care decisions is really fundamental to who we are as a nation,” Tester said.

Washington Democratic Sen. Patty Murray criticized the conservative justices for moving to undo nationwide protections for people seeking to terminate a pregnancy.

“We do not want this to become a country where women are forced to remain pregnant no matter their personal circumstances and yes, we are talking about situations like rape and incest,” Murray said.

“A country where extreme politicians will control patients’ most private decisions. A country where for the very first time ever the next generation of women will have fewer rights than their mothers.”

Michigan Sen. Gary Peters, chair of the Democratic Senatorial Campaign Committee, said abortion rights will become a “major issue” in November’s midterms elections.

“We’ve seen legislation being passed in state legislatures across the country to limit reproductive freedom for women. But there was always the belief that Roe versus Wade was there,” Peters said. “If Roe versus Wade is overturned, it’s a completely different ballgame.”

60 votes needed

In the Senate, Democrats would need 60 senators to vote to get past the legislative filibuster and actually pass legislation codifying abortion access throughout the country. Those votes would be required to end debate and move on to final passage, which is a simple majority vote.

Peters, asked if Democrats could somehow get to a 60-seat majority in the midterm elections, said “it would be pretty difficult to get there.”

While the entire U.S. House — an increasing number of whom represent gerrymandered districts — will be up for reelection in November, just one-third of the U.S. Senate will face voters.

This year that will be 35 seats, with 14 occupied by Democrats and 21 filled by Republicans.

The Cook Political Report with Amy Walter rates five of those races — Arizona, Georgia, Nevada, Pennsylvania and Wisconsin – as “toss up.” Florida, North Carolina and Ohio are classified as “lean Republican.”

Senators’ positions 

Georgia Sen. Raphael Warnock said he’s going to “do everything” he can to “support reproductive rights.”

He’s one of many Senate Democrats who support eliminating the filibuster.

“No Senate procedure should get in the way of basic civil rights — voting rights, reproductive rights,” Warnock said.

Arizona Democratic Sen. Mark Kelly isn’t as convinced that the Senate should change its procedures, but didn’t rule out backing a change to how bills are processed.

“If there is a proposal to change the rules, I will make a decision on what is in the best interest of the country and the folks I represent in Arizona,” Kelly said.

Fellow Arizona Democratic Sen. Kyrsten Sinema doesn’t back such a change and neither does West Virginia Democratic Sen. Joe Manchin III.

That means Senate Democrats don’t have the votes during this Congress to codify abortion rights or change the rules to make it easier to pass abortion rights legislation.

If Democrats lose control of the Senate following the midterm elections, Republicans are expected to keep the filibuster in place.

Minority Leader Mitch McConnell, a Kentucky Republican, said Tuesday he would “absolutely” commit to keeping it intact.

“We don’t want to break the Senate and that’s breaking the Senate,” he said.

McConnell declined to answer questions on how a final Supreme Court decision overturning Roe v. Wade would affect women throughout the country or whether he’d bring legislation to the floor to address federal abortion laws.

“All of this puts the cart before the horse,” he said.

National Republican Senatorial Committee Chairman Rick Scott, a Florida Republican senator, declined to say if the Supreme Court overturning abortion as a fundamental right would affect the election.

“I think this is an important issue to many people, but so is inflation, so is crime, so is the border,” Scott said. “So, these are important to people and people are gonna be passionate about this. And we ought to be passionate about what we believe in.”

Scott — who infuriated many fellow GOP senators earlier this year when he released an 11-point plan without leadership approval — declined to say if the GOP would try to pass a bill banning abortion nationwide if they gain control of the Senate in the midterms.

“We’ll worry about that next year,” Scott said.

‘Inconsistent’ justices

While many Senate Republicans oppose abortion rights and would support the Supreme Court overturning Roe v. Wade, two expressed frustration with the possibility.

Maine Republican Sen. Susan Collins — who voted to confirm Neil Gorsuch and Brett Kavanaugh, but not Amy Coney Barrett— said in a statement that “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”

Collins declined to answer reporters’ questions throughout the morning, simply saying she’d released a statement.

Alaska GOP Sen. Lisa Murkowski — who supported Gorsuch and Barrett, but not Kavanaugh — told reporters that certain justices voting to overturn precedent would erode her confidence in the court.

“If in fact this draft is where the Court ends up being, it has rocked my confidence in the court. That is because I think there were some representations made with regards to precedent and settled,” said Murkowski. “Comments were made to me and to others about Roe being settled and being precedent.”

When the Senate took a procedural vote in February on a House-passed bill that would codify the right to an abortion, Collins, Murkowski and Manchin all voted against moving to final passage.

Schumer said he expects a new vote could be different from the one taken just over two months ago.

“It’s a different world now, the tectonic plates of our politics on women’s choice and on rights in general are changing,” Schumer said.

“Every senator, now under the real glare of Roe v. Wade being repealed by the courts, is going to have to show which side they’re on. And we will find the best way to go forward after that. But don’t think that what happened two (months) ago will be exactly the same.”

JENNIFER SHUTT covers the nation’s capital as a senior reporter for States Newsroom. Her coverage areas include congressional policy, politics and legal challenges with a focus on health care, unemployment, housing and aid to families.

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